COMCAST CORPORATION UNDERWRITING AGREEMENT STANDARD PROVISIONS (DEBT SECURITIES) August 31, 2009
Exhibit
1.1
COMCAST
CORPORATION
STANDARD
PROVISIONS
(DEBT
SECURITIES)
From time
to time, Comcast Corporation, a Pennsylvania corporation (the “Company”), may, alone or
together with Comcast Cable Communications, LLC, Comcast Cable Holdings, LLC,
Comcast MO Group, Inc. and Comcast MO of Delaware, LLC (collectively, the “Cable Guarantors”), enter into
one or more underwriting agreements that provide for the sale of designated
securities to the several underwriters named therein. The standard
provisions set forth herein may be incorporated by reference in any such
underwriting agreement (an “Underwriting
Agreement”). The Underwriting Agreement, including the
provisions incorporated therein by reference, is herein referred to as this
Agreement. Terms defined in the Underwriting Agreement are used
herein as therein defined.
The
Company proposes to issue from time to time its senior debt securities (“Senior Debt Securities”) and
its subordinated debt securities (“Subordinated Debt Securities”
and with the Senior Debt Securities, the “Debt Securities”), which Debt
Securities may, if so designated, be convertible into the Company’s Class A
Common Stock, par value $0.01 per share, or Class A Special Common Stock, par
value $0.01 per share. The Debt Securities may be guaranteed (the
“Cable Guarantees”) on
an unsecured basis by the Cable Guarantors.
The
Company and the Cable Guarantors have filed with the Securities and Exchange
Commission (the “Commission”) a registration
statement including a prospectus relating to the Debt Securities and the Cable
Guarantees and have filed with, or transmitted for filing to, or shall promptly
after the date of this Agreement file with or transmit for filing to, the
Commission a prospectus supplement (the “Prospectus Supplement”)
pursuant to Rule 424 under the Securities Act of 1933, as amended (the “Securities Act”), specifically
relating to the Debt Securities and the Cable Guarantees, if applicable, offered
pursuant to this Agreement (the “Offered
Securities”). The term “Registration Statement” means
the registration statement as amended to the date of this Agreement including
any additional registration statement filed by the Company pursuant to Rule
462(b). The term “Base Prospectus” means the
prospectus included in the Registration Statement. The term “Prospectus” means the Base
Prospectus together with the Prospectus Supplement. The term “preliminary prospectus” means
a preliminary prospectus supplement specifically relating to the Offered
Securities, together with the Base Prospectus. The term “free writing prospectus” has
the meaning set forth in Rule 405 under the Securities Act. The term
“issuer free writing
prospectus” has the meaning set forth in Rule 433 under the Securities
Act. The term “Disclosure Package” means the
Base Prospectus and preliminary prospectus, if any, together with any additional
documents or other information identified in Schedule I to this
Agreement. As used herein, the terms “Base
Prospectus,”
“Prospectus”, “preliminary prospectus” and “Disclosure Package” shall include in
each case the documents, if any, incorporated by reference
therein. As used herein, the term “Applicable Time” means the
time and date at which this Agreement is deemed to be executed or such other
time as agreed in writing by the Company and the Managers. The terms
“supplement,” “amendment” and “amend” as used herein shall include all documents
deemed to be incorporated by reference in the Prospectus that are filed
subsequent to the date of the Base Prospectus by the Company with the Commission
pursuant to the Securities Exchange Act of 1934, as amended (the “Exchange Act”). For
purposes of this Agreement, “Issuers” means the Company and
includes the Cable Guarantors if Cable Guarantees are offered pursuant to this
Agreement.
1. Representations and
Warranties. The Issuers, jointly and severally, represent and
warrant to each of the Underwriters as of the Applicable Time that:
(a) The
Registration Statement has become effective; no stop order suspending the
effectiveness of the Registration Statement is in effect, and no proceedings for
such purpose are pending before or threatened by the Commission.
(b) Each
document filed or to be filed pursuant to the Exchange Act and incorporated by
reference in the Disclosure Package or the Prospectus complied or will comply
when so filed in all material respects with the Exchange Act and the rules and
regulations of the Commission thereunder.
(c) The
Registration Statement, the Disclosure Package and the Prospectus comply in all
material respects with the Securities Act and the rules and regulations of the
Commission thereunder and do not contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, except that the foregoing
representations and warranties do not apply to (i) that part of the Registration
Statement which shall constitute the Statement of Eligibility of the Trustee on
Form T-1 (the “Form
T-1”) or (ii) statements or omissions in the Registration Statement, the
Disclosure Package or the Prospectus or any amendment or supplement thereto
based upon information furnished to the Issuers in writing by any Underwriter
through the Managers expressly for use therein.
(d) The
Company is not an “ineligible issuer” in connection with the offering pursuant
to Rules 164, 405 and 433 under the Securities Act. The Company has not made,
used, prepared, authorized, approved or referred to any offer relating to the
Offered Securities that would constitute a free writing prospectus other than
(i) any written communications furnished in advance to the Managers; (ii) an
electronic road show, if any, furnished to the Managers before first use; or
(iii) free writing prospectuses identified on Schedule I to this Agreement,
including the term sheet as set forth in Schedule II to this
Agreement. Any such free writing prospectus as of its issue date
complied in all material respects with the requirements of the Securities Act
and the rules and regulations thereunder and was filed with the Commission in
accordance with the Securities Act (to the extent required pursuant to Rule
433(d) thereunder).
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(e) The
execution and delivery by each Issuer of, and the performance by each Issuer of
its obligations under, this Agreement, each indenture under which the Offered
Securities are to be issued, and the Offered Securities, will not contravene any
provision of applicable law or the articles of incorporation or by-laws of any
Issuer or any agreement or other instrument binding upon the Company or any of
its subsidiaries that is material to the Company and its consolidated
subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company or any
of its consolidated subsidiaries, and no consent, approval, authorization or
order of, or qualification with, any governmental body or agency is required for
the performance by each Issuer of its obligations under this Agreement, each
indenture under which the Offered Securities are to be issued or the Offered
Securities, except such as may be required by the securities or blue sky laws of
the various states in connection with the offer and sale of the Offered
Securities; provided,
however, that no representation is made as to whether the purchase of the
Offered Securities constitutes a “prohibited transaction” under Section 406 of
the Employee Retirement Income Security Act of 1974, as amended, or Section 4975
of the Internal Revenue Code of 1986, as amended.
(f) Neither
the Company nor any of its subsidiaries is (i) in violation of its articles of
incorporation or by-laws (or similar organizational documents) or (ii) in
default in the performance or observance of any obligation, covenant or
condition contained in any contract, except to the extent such default would not
have a material adverse effect.
(g) There has
not occurred any material adverse change, or any development involving a
prospective material adverse change, in the condition, financial or otherwise,
or in the earnings, business or operations of the Company and its subsidiaries,
taken as a whole, from that set forth in the Disclosure Package (exclusive of
any amendments or supplements thereto effected subsequent to the date of the
Agreement).
(h) There are
no legal or governmental proceedings pending or threatened to which the Company
or any of its consolidated subsidiaries is a party or to which any of the
properties of the Company or any of its consolidated subsidiaries is subject
that are required to be described in the Registration Statement or the
Disclosure Package and are not so described or any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Disclosure Package or to be filed or incorporated
by reference as exhibits to the Registration Statement that are not described,
filed or incorporated as required.
(i) Each of
the Company and its consolidated subsidiaries has all necessary consents,
authorizations, approvals, orders, certificates and permits of and from, and has
made all declarations and filings with, all federal, state, local and other
governmental authorities, all self-regulatory organizations and all courts and
other tribunals, to own, lease, license and use its properties and assets and to
conduct its business in the manner described in the Disclosure Package, except
to the extent that the failure to obtain or file would not have a material
adverse effect on the Company and its consolidated subsidiaries, taken as a
whole.
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2. Public
Offering. The Issuers are advised by the Managers that the
Underwriters propose to make a public offering of their respective portions of
the Offered Securities as soon after this Agreement has been entered into as in
the Managers’ judgment is advisable. The terms of the public offering
of the Offered Securities are set forth in the Disclosure Package and the
Prospectus.
3. Purchase and
Delivery. Except as otherwise provided in this Section 3,
payment for the Offered Securities shall be made to the Company in Federal or
other funds immediately available in New York City at the time and place set
forth in this Agreement, upon delivery to the Managers for the respective
accounts of the several Underwriters of the Offered Securities registered in
such names and in such denominations as the Managers shall request in writing
not less than one full business day prior to the date of delivery, with any
transfer taxes payable in connection with the transfer of the Offered Securities
to the Underwriters duly paid.
4. Conditions to
Closing. The several obligations of the Underwriters hereunder
are subject to the following conditions:
(a) Subsequent
to the Applicable Time and prior to the Closing Date, there shall not have
occurred any downgrading, nor shall any notice have been given of any intended
or potential downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating accorded any Issuer
or any of the securities of any Issuer by any “nationally recognized statistical
rating organization,” as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act.
(b) No stop
order suspending the effectiveness of the Registration Statement shall be in
effect, and no proceedings for such purpose shall be pending before or
threatened by the Commission, and there shall not have occurred any change, or
any development involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations of the Company and its
consolidated subsidiaries, taken as a whole, from that set forth in the
Disclosure Package, that, in the judgment of the Managers, is material and
adverse and that makes it, in the judgment of the Managers, impracticable to
market the Offered Securities on the terms and in the manner contemplated in the
Disclosure Package; and the Managers shall have received, on the Closing Date, a
certificate, dated the Closing Date and signed by an executive officer of the
Company, to the foregoing effect. Such certificate shall also provide
that the representations and warranties of the Company contained herein are true
and correct as of the Closing Date. The officer making such
certificate may rely upon the best of his knowledge as to proceedings
threatened.
(c) The
Managers shall have received on the Closing Date an opinion of Xxxxxx X. Block,
Esquire, Senior Vice President, General Counsel and Secretary of the Company (or
another lawyer of the Company reasonably satisfactory to the Underwriters),
dated the Closing Date, to the effect (as applicable) that:
(i) the
Company is validly existing as a corporation subsisting under the laws of the
Commonwealth of Pennsylvania and is duly qualified to transact
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business
and is in good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such qualification
(except where the failure to so qualify would not have a material adverse effect
upon the business or financial condition of the Company and its subsidiaries, as
a whole);
(ii) each
indenture under which the Offered Securities are to be issued, has been duly
authorized, executed and delivered by the Company;
(iii) this
Agreement has been duly authorized, executed and delivered by the
Company;
(iv) all of
the issued shares of capital stock or membership interests, as applicable, of
each Cable Guarantor have been duly and validly authorized and issued, are fully
paid and non-assessable (with respect to such shares of capital stock), and
(except for directors’ qualifying shares and except as otherwise set forth in
the Disclosure Package) are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims;
(v) the
Company has an authorized capitalization as set forth in the Disclosure Package,
and all of the issued shares of capital stock of the Company have been duly and
validly authorized and issued and are fully paid and
non-assessable;
(vi) the
Offered Securities to be offered by the Company have been duly authorized by the
Company;
(vii) except as
rights to indemnity and contribution under this Agreement may be limited under
applicable law, the execution and delivery by each Issuer of, and the
performance by each Issuer of its obligations under, each indenture under which
the Offered Securities are to be issued, the Offered Securities and this
Agreement will not contravene (A) any provision of the laws of the Commonwealth
of Pennsylvania or any federal law of the United States of America that in such
counsel’s experience is normally applicable to general business corporations in
relation to transactions of the type contemplated by each indenture under which
the Offered Securities are to be issued, the Offered Securities and this
Agreement (except with respect to federal, state or foreign securities laws or
to laws relating specifically to the cable communications industry, as to which
such counsel is not called upon to express any opinion), (B) the articles of
incorporation or bylaws or equivalent organizational documents of any Issuer, or
(C) to the best of such counsel’s knowledge, any material agreement or other
material instrument binding upon such Issuer;
(viii) no
consent, approval, authorization, or order of, or qualification with any state
governmental body or agency under the laws of the Commonwealth of Pennsylvania,
any federal law of the United States of America, or to
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the best
of such counsel’s knowledge, any other state or jurisdiction of the United
States, that in such counsel’s experience is normally applicable to general
business corporations in relation to transactions of the type contemplated by
each indenture under which the Offered Securities are to be issued, the Offered
Securities and this Agreement is required for the performance by any Issuer of
its obligations under each indenture under which the Offered Securities are to
be issued, the Offered Securities and this Agreement (except such as may be
required under federal, state or foreign securities or Blue Sky laws and with
respect to consents, approvals and authorizations relating specifically to the
cable communications industry as to which such counsel is not called upon to
express any opinion);
(ix) subject
to such qualification as may be set forth in the Disclosure Package, the Company
and its subsidiaries have, and are in material compliance with, such franchises,
and to the best knowledge of such counsel after reasonable investigation, such
licenses and authorizations, as are necessary to own their properties and to
conduct their business in the manner described in the Disclosure Package, except
where the failure to have, or comply with, such franchises, licenses and
authorizations would not have a material adverse effect on the business or
financial condition of the Company and its subsidiaries, as a whole, and such
franchises, licenses and authorizations contain no materially burdensome
restrictions not adequately described in the Disclosure Package, which
restrictions would have a material adverse effect on the business or financial
condition of the Company and its subsidiaries, as a whole;
(x) the
statements included in (A) Item 3 of the Company’s most recent Annual Report on
Form 10-K incorporated by reference in the Disclosure Package, (B) Part II, Item
1 under the caption “Legal Proceedings” of the Company’s most recent Quarterly
Report on Form 10-Q, if any, incorporated by reference in the Disclosure
Package, (C) the Registration Statement in Item 15 and (D) the Disclosure
Package under the caption “Description of Capital Stock,”1 insofar as such statements summarize the legal
matters, documents or proceedings referred to therein, fairly summarize such
legal matters, documents and proceedings in all material respects;
(xi) such
counsel does not know of any legal or governmental proceeding pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is subject
which is required to be described in the Registration Statement or the
Disclosure Package and is not so described or of any contract or other document
which is required to be described in the Registration Statement or the
Disclosure
1 The
inclusion of Section 4(c)(x)(D) is only required for issuances of convertible
debt.
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Package
or to be filed as an exhibit to the Registration Statement which is not
described or filed as required;
(xii) the
securities into which the Offered Securities are convertible, initially reserved
for issuance upon conversion of the Offered Securities (the “Underlying Securities”), have
been duly authorized and reserved for issuance; and
(xiii) when the
Underlying Securities are issued upon conversion of the Offered Securities in
accordance with the terms of the Offered Securities, such Underlying Securities
will be validly issued, fully paid and non-assessable and will not be subject to
any preemptive or other right to subscribe for or purchase such Underlying
Securities.
Such
counsel shall also state that nothing has come to his attention that causes him
to believe that (1) on the date of this Agreement, the Registration Statement
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading; (2) at the Applicable Time, the Disclosure Package contained any
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading; or (3) that the
Prospectus as of the date of this Agreement or as of the Closing Date contained
or contains an untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make statements therein, in the light of
the circumstances under which they are made, not misleading.
With
respect to the preceding paragraph, such counsel may state that his belief is
based upon his participation in the preparation of the Registration Statement,
Disclosure Package, Prospectus and the documents incorporated therein by
reference and review and discussion of the contents thereof, but is without
independent check or verification except as specified. Such counsel
need not pass upon or assume responsibility for the accuracy, completeness or
fairness of the statements contained in, and need not have checked the accuracy,
completeness or fairness of, or otherwise verified, the information furnished in
Registration Statement, Disclosure Package, and the Prospectus, except as
specified. Such counsel is not called to pass upon, and need express no view
regarding, the financial statements or financial schedules or other financial or
accounting data included in the Registration Statement, the Disclosure Package,
the Prospectus or the Statement of Eligibility of the Trustee on Form T-1. In
addition, such counsel need not express a view as to the conveyance of the
Disclosure Package or the information contained therein to the purchasers of the
Offered Securities.
In
expressing his opinion as to questions of the law of jurisdictions other than
the Commonwealth of Pennsylvania and the United States, such counsel may rely to
the extent reasonable on such counsel as may be reasonably acceptable to counsel
to the Underwriters. In addition, such counsel may reasonably rely as
to questions of fact on certificates of responsible officers of the
Company.
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(d) The
Managers shall have received on the Closing Date an opinion of Xxxxx Xxxx &
Xxxxxxxx LLP, special counsel for the Company, dated the Closing Date, to the
effect that:
(i) each
Cable Guarantor is validly existing as a corporation or limited liability
company in good standing under the laws of the State of Delaware;
(ii) each
indenture under which the Offered Securities are to be issued has been duly
authorized, executed and delivered by each Cable Guarantor and, assuming each
indenture under which the Offered Securities are to be issued has been duly
authorized, executed and delivered by the Company and duly executed and
delivered by the respective trustee thereto, each indenture under which the
Offered Securities are to be issued is a valid and binding agreement of each
Issuer, enforceable against each Issuer in accordance with its terms, subject to
applicable bankruptcy, insolvency and similar laws affecting creditors’ rights
generally, concepts of reasonableness and equitable principles of general
applicability (except with respect to the (A) enforceability of any waiver of
rights under any usury or stay law, and (B) validity, legally binding effect or
enforceability of any provision that permits holders to collect any portion of
stated principal amount upon acceleration of the Offered Securities to the
extent determined to constitute unearned interest, as to which such counsel is
not called upon to express any opinion);
(iii) the Cable
Guarantees have been duly authorized, and, assuming the Offered Securities have
been authorized by the Company, when the Offered Securities have been duly
executed and authenticated in accordance with the provisions of each relevant
indenture under which the Offered Securities are to be issued and delivered to
and paid for by the Underwriters pursuant to this Agreement, the Offered
Securities will be valid and binding obligations of the Company and the Cable
Guarantees will be valid and binding obligations of the Cable Guarantors,
enforceable against them in accordance with their terms, subject to applicable
bankruptcy, insolvency and similar laws affecting creditors’ rights generally,
concepts of reasonableness and equitable principles of general applicability;
and will be entitled to the benefits of each relevant indenture under which the
Offered Securities are to be issued (except with respect to the (A)
enforceability of any waiver of rights under any usury or stay law, and (B)
validity, legally binding effect or enforceability of any provision that permits
holders to collect any portion of stated principal amount upon acceleration of
the Offered Securities to the extent determined to constitute unearned interest,
as to which such counsel is not called upon to express any
opinion);
(iv) this
Agreement has been duly authorized, executed and delivered by each Cable
Guarantor party hereto;
(v) except as
rights to indemnity and contribution under this Agreement may be limited under
applicable law, the execution and delivery by each Issuer
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of, and
the performance by each Issuer of its obligations under each indenture under
which the Offered Securities are to be issued, the Offered Securities and this
Agreement, will not contravene (A) any provision of laws of the State of New
York or any federal law of the United States of America that in such counsel’s
experience is normally applicable to general business corporations in relation
to transactions of the type contemplated by each indenture under which the
Offered Securities are to be issued, the Offered Securities and this Agreement
(except with respect to federal, state or foreign securities laws or to laws
relating specifically to the cable communications industry, as to which such
counsel is not called upon to express any opinion), or (B) the certificate of
incorporation or bylaws or equivalent organizational documents of any Cable
Guarantor; and
(vi) no
consent, approval, authorization or order of, or qualification with, any
governmental body or agency under the laws of the State of New York or any
federal law of the United States of America that in such counsel’s experience is
normally applicable to general business corporations in relation to transactions
of the type contemplated by each indenture under which the Offered Securities
are to be issued, the Offered Securities and this Agreement (except such as may
be required under federal, state or foreign securities or Blue Sky laws and with
respect to consents, approvals and authorizations relating specifically to the
cable communications industry, as to which such counsel is not called upon to
express any opinion).
Such
counsel shall state that they have considered the statements included in the
Prospectus Supplement under the caption “Description of the Notes” and in the
Base Prospectus under the caption “Description of Debt Securities and Cable
Guarantees” insofar as they summarize provisions of each indenture under which
the Offered Securities are to be issued and, the Offered Securities and that in
their opinion such statements fairly summarize these provisions in all material
respects. Such counsel shall also state that the statements included
in the Prospectus Supplement under the caption “Material U.S. Federal Income Tax
Consequences for Non-U.S. Holders” insofar as they purport to describe
provisions of U.S. federal income tax laws or legal conclusions with respect
thereto, fairly and accurately summarize the matters referred to therein in all
material respects.
Such
counsel shall also state that (a) the Registration Statement and the Prospectus
appear on their face to be appropriately responsive in all material respects to
the requirements of the Securities Act and the applicable rules and regulations
of the Commission thereunder, and (b) nothing has come to the attention of such
counsel that causes them to believe that, insofar as relevant to the offering of
the Offered Securities, (1) on the date of this Agreement, the Registration
Statement contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading; (2) at the Applicable Time, the Disclosure
Package contained any untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they are made, not misleading; or (3) the
Prospectus as of the date of this Agreement or as of the Closing Date contained
or contains any untrue statement of a material fact or omitted or omits to state
a material fact necessary in order
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to make
statements therein, in the light of the circumstances under which they are made,
not misleading.
With
respect to the preceding paragraph, Xxxxx Xxxx & Xxxxxxxx may state that
their belief is based upon information gained in the performance of their
services, but is without independent check or verification except as
specified. Such counsel need not pass upon or assume responsibility
for the accuracy, completeness or fairness of statements contained in, and need
not have checked the accuracy, completeness or fairness of, or otherwise
verified, the information furnished in, the Registration Statement, the
Disclosure Package and the Prospectus, except as specified. In addition, such
counsel is not called to pass upon, or express any view regarding, the financial
statements or financial schedules or other financial or accounting data included
in the Registration Statement, the Disclosure Package, the Prospectus or the
Form T-1. Such counsel need not express a view as to the conveyance
of the Disclosure Package of the information contained therein to
investors.
(e) The
Managers shall have received on the Closing Date an opinion of internal
communications counsel for the Company, dated the Closing Date, to the effect
that:
(i) no
approval of the Federal Communications Commission (the “FCC”) is required in
connection with the issuance and sale of the Offered Securities;
(ii) the
execution and delivery of this Agreement, each indenture under which the Offered
Securities are to be issued, by each Issuer, the fulfillment of the terms set
forth herein and therein by each Issuer and the consummation of the transactions
contemplated hereby and thereby by each Issuer do not violate any statute,
regulation or other law of the United States relating specifically to the cable
communications industry (except as otherwise explicitly set forth in the
Disclosure Package) or, to the knowledge of such counsel, any order, judgment or
decree of any court or governmental body of the United States relating
specifically to the cable communications industry and applicable to such Issuer
or any subsidiary, and which violation would have a material adverse effect on
the business or financial condition of such Issuer and its subsidiaries, as a
whole;
(iii) the
statements in the Company’s most recent Annual Report on Form 10-K incorporated
by reference in the Registration Statement, the Disclosure Package and
Prospectus relating specifically to the cable communications industry, as
updated by the Company’s most recent Quarterly Reports on Form 10-Q, if any, and
Current Reports on Form 8-K, if any, incorporated in the Registration Statement,
the Disclosure Package and the Prospectus and as updated by the Disclosure
Package, insofar as they are, or refer to, statements of federal law or legal
conclusions, have been reviewed by such counsel and present in all material
respects the information called for with respect to such statements of federal
law or legal conclusions; and
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(iv) such
counsel does not know of any proceeding pending before the FCC to which the
Company or any of its subsidiaries is a party or involving the cable
communications properties, licenses or authorizations of the Company and its
subsidiaries, or of any cable communications law or regulation relevant thereto
required to be described in the Registration Statement or the Disclosure Package
pursuant to Regulation S-K promulgated under the Securities Act, which is not
described as required.
(f) The
Managers shall have received on the Closing Date an opinion of Xxxxxx Xxxxxx
& Xxxxxxx llp, counsel for the
Underwriters, dated the Closing Date, covering the matters requested by and in
form and substance reasonably satisfactory to the Managers.
(g) The
Managers shall have received on the date hereof a letter dated such date and on
the Closing Date a letter dated such date, in each case in form and substance
satisfactory to the Managers, from Deloitte & Touche LLP, independent public
accountants, containing statements and information of the type ordinarily
included in accountants’ “comfort letters” to underwriters with respect to the
financial statements and certain financial information reviewed by them
contained in or incorporated by reference in the Registration Statement, the
Disclosure Package and the Prospectus and each other firm of independent
accountants, if any, who audited or reviewed financial statements contained in
or incorporated by reference in the Registration Statement, the Disclosure
Package and the Prospectus, containing statements and information of the type
ordinarily included in accountants’ “comfort letters” to underwriters with
respect to such financial statements and financial information.
(h) The
Managers shall have received on the date hereof or on the Closing Date, as
applicable, such additional documents as the Managers shall have reasonably
requested to confirm compliance with the conditions to Closing listed
herein.
5. Covenants of the
Company. In further consideration of the agreements of the
Underwriters herein contained, the Issuers covenant as follows:
(a) To
furnish to the Managers, without charge, a copy of the Registration Statement
and two signed copies of any post-effective amendment thereto specifically
relating to the Offered Securities (including exhibits thereto and documents
incorporated therein by reference) and, during the period mentioned in paragraph
(f) below, as many copies of the Disclosure Package, the Prospectus, any
documents incorporated therein by reference and any supplements and amendments
thereto as the Managers may reasonably request.
(b) Before
amending or supplementing the Registration Statement, the Disclosure Package or
the Prospectus, to furnish the Managers a copy of each such proposed amendment
or supplement.
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(c) Before
filing, using or referring to any free writing prospectus relating to the
Offered Securities, to furnish the Managers a copy of each such free writing
prospectus.
(d) Not to
take any action that would result in an Underwriter being required to file with
the Commission pursuant to Rule 433(d) under the Securities Act a free writing
prospectus prepared by or on behalf of the Underwriter that the Underwriter
otherwise would not have been required to file thereunder.
(e) If the
Disclosure Package is being used to solicit offers to buy the Offered Securities
at a time when the Prospectus is not yet available to prospective purchasers and
any event shall occur as a result of which it is necessary to amend or
supplement the Disclosure Package in order to make the statements therein, in
the light of the circumstances existing at the time, not misleading, or if any
event shall occur as a result of which any free writing prospectus included as
part of the Disclosure Package conflicts with the information contained in the
Registration Statement then on file, the Company shall forthwith prepare and
furnish, at its expense, to the Underwriters and to the dealers (whose names and
addresses the Managers will furnish to the Company), either amendments or
supplements to the Disclosure Package so that the statements in the Disclosure
Package as so amended or supplemented will not, in the light of the
circumstances existing at the time, be misleading or so that any free writing
prospectus which is included as part of the Disclosure Package, as amended or
supplemented, will no longer conflict with the Registration
Statement.
(f) If,
during such period after the first date of the public offering of the Offered
Securities during which in the opinion of counsel to the Managers the Prospectus
(or in lieu thereof the notice referred to in Rule 173(a) under the Securities
Act) is required by law to be delivered in connection with sales by an
Underwriter or dealer, any event shall occur as a result of which it is
necessary to amend or supplement the Prospectus in order to make the statements
therein, in the light of the circumstances existing at the time, not misleading,
forthwith to prepare and furnish, at its expense, to the Underwriters and to the
dealers (whose names and addresses the Managers will furnish to the Company) to
which Offered Securities may have been sold by the Managers on behalf of the
Underwriters and to any other dealers on request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances existing at
the time, be misleading.
(g) To
endeavor to qualify the Offered Securities for offer and sale under the
securities or Blue Sky laws of such U.S. jurisdictions as the Managers shall
reasonably request.
(h) To make
generally available to the Company’s security holders as soon as practicable an
earnings statement covering the twelve month period beginning on the first day
of the first fiscal quarter commencing after the date hereof, which shall
satisfy the provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder (which may be accomplished by making
generally available the
12
Company’s
financial statements in the manner provided for by Rule 158 of the Securities
Act).
6. Covenants of the
Underwriters. In further consideration of the agreements of
the Issuers herein contained, each Underwriter severally covenants as
follows:
(a) Not to
take any action that would result in the Company being required to file with the
Commission under Rule 433(d) a free writing prospectus prepared by or on behalf
of such Underwriter that otherwise would not be required to be filed by the
Company thereunder, but for the action of the Underwriter.
(b) Not to
use, refer to or distribute any free writing prospectus except:
(i) a free
writing prospectus that (A) is not an issuer free writing prospectus and (B)
contains only information describing the preliminary terms of the Offered
Securities or the offering thereof, which information is limited to the
categories of terms referenced on Schedule II to this Agreement or otherwise
permitted under Rule 134 of the Securities Act;
(ii) a free
writing prospectus as shall be agreed in writing with the Company that is not
distributed, used or referred to by such Underwriter in a manner reasonably
designed to lead to its broad unrestricted dissemination (unless the Company
consents in writing to such dissemination); or
(iii) a free
writing prospectus identified in Schedule I to this Agreement as forming part of
the Disclosure Package.
7. Indemnification and
Contribution. The Issuers, jointly and severally, agree to
indemnify and hold harmless each Underwriter and each person, if any, who
controls each Underwriter within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, any preliminary prospectus, the Disclosure Package (as amended or
supplemented), any issuer free writing prospectus as defined under Rule 433(d)
under the Securities Act or the Prospectus (as amended or supplemented), or
caused by any omission or alleged omission to state therein a material fact
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
furnished to any Issuer in writing by such Underwriter through the Managers
expressly for use therein; provided, however, that the foregoing indemnity with
respect to any preliminary prospectus, any issuer free writing prospectus or the
Disclosure Package shall not inure to the benefit of any Underwriter from whom
the person asserting any such losses, claims, damages or liabilities purchased
Offered Securities, or any person controlling any such Underwriter, if (a) the
Issuers have notified such Underwriter that any preliminary prospectus, any
issuer free writing prospectus or the Disclosure Package contains an untrue
statement of a material fact or an omission to state a material fact necessary
to make the statements therein not misleading, (b) the Issuers provided a copy
of any
13
such
preliminary prospectus, issuer free writing prospectus or Disclosure Package (as
then amended or supplemented if the Company shall have furnished any amendments
or supplements thereto) or a separate free writing
prospectus correcting such material misstatement or omission to the
contact of the Managers indicated in the notice provision contained in this
Agreement sufficiently in advance of first
entering into a contract of sale of Offered Securities with such person (the
“Time of
Sale”) so that such preliminary prospectus, issuer free writing prospectus
or Disclosure Package (as so amended or supplemented but without
reference to documents incorporated by reference therein) or separate free
writing prospectus could have been conveyed to
such person prior to the Applicable Time, and (c) the information contained in
any such corrected preliminary prospectus, issuer free writing prospectus,
Disclosure Package or separate free writing prospectus was not conveyed by or on
behalf of such Underwriter to such person, if required by law so to have been
conveyed, at or prior to the Time of Sale, and if such corrected preliminary
prospectus, issuer free writing prospectus, or Disclosure Package (as so amended
or supplemented but without reference to documents incorporated by reference
therein) or separate free writing prospectus would have cured the defect giving
rise to such loss, claim, damage or liability.
Each
Underwriter severally and not jointly agrees to indemnify and hold harmless each
Issuer, their respective directors and officers who sign the Registration
Statement and each person, if any, who controls an Issuer within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act to the
same extent as the foregoing indemnity from the Issuers to such Underwriter, but
only with reference to information relating to such Underwriter furnished to any
Issuer in writing by such Underwriter through the Managers expressly for use in
the Registration Statement, any preliminary prospectus, the Disclosure Package,
any issuer free writing prospectus, the Prospectus or any amendment or
supplement thereto.
In case
any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to
either of the two preceding paragraphs, such person (hereinafter called the
“indemnified party”) shall promptly notify the person against whom such
indemnity may be sought (hereinafter called the “indemnifying party”) in writing
and the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between
them. It is understood that the indemnifying party shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the reasonable fees and expenses of more than one separate firm
(in addition to any local counsel) for all such indemnified parties and that all
such fees and expenses shall be reimbursed as they are incurred. In
the case of any such separate firm for the Underwriters and such control persons
of the Underwriters, such firm shall be designated in writing by the
Managers. In the case of any such separate firm for the
14
Issuers
and such directors, officers and controlling persons of the Issuers, such firm
shall be designated in writing by the Issuers. The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify, to the
extent provided in the two immediately preceding paragraphs, the indemnified
party from and against any loss or liability by reason of such settlement or
judgment. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such proceeding.
If the
indemnification provided for in the first or second paragraph of this Section 7
is unavailable to an indemnified party in respect of any losses, claims, damages
or liabilities for which indemnification is provided herein, then the
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Issuers on the one
hand and the Underwriters on the other from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Issuers on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Issuers and the
Underwriters shall be deemed to be in the same respective proportions as the net
proceeds from the offering (before deducting expenses) received by the Issuers
bear to the total underwriting discounts and commissions received by the
Underwriters in respect thereof. The relative fault of the Issuers
and the Underwriters shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Issuers or by the Underwriters and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The
Issuers and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 7,
the Underwriters shall not be required to contribute any amount in excess of the
amount by which the total price at which the Offered Securities underwritten by
them and distributed to the public were offered to the public exceeds the amount
of any damages which the Underwriters have otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
15
omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
The
indemnity and contribution agreement contained in this Section 7 and the
representations and warranties of the Company contained in this Agreement shall
remain operative and in full force and effect regardless of (i) any termination
of this Agreement, (ii) any investigation made by or on behalf of the
Underwriters or any person controlling the Underwriters or by or on behalf of
the Issuers, their respective officers or directors or any other person
controlling an Issuer and (iii) acceptance of and payment for any of the Offered
Securities.
8. Termination. This
Agreement shall be subject to termination in the absolute discretion of the
Managers by notice given by the Managers to the Issuers, if (a) after the
Applicable Time and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, the New York
Stock Exchange, the American Stock Exchange, or the Financial Industry
Regulatory Authority, (ii) trading of any securities of the Company shall have
been suspended on the Nasdaq Global Select Market, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities, or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the judgment of the Managers, is material and
adverse and (b) in the case of any of the events specified in clauses (a)(i)
through (iv), such event, singly or together with any other such event, makes
it, in the judgment of the Managers, impracticable to market the Offered
Securities on the terms and in the manner contemplated in the Disclosure
Package.
The
Issuers will pay and bear all costs and expenses incident to the performance of
their obligations under this Agreement, including (a) the preparation, printing
and filing of the Registration Statement (including financial statements and
exhibits), as originally filed and as amended, the preliminary prospectuses, the
Disclosure Package, any free writing prospectus and the Prospectus and any
amendments or supplements thereto, and the cost of furnishing copies thereto to
the Underwriters, (b) the preparation, printing and distribution of this
Agreement, each indenture under which the Offered Securities are to be issued
and Blue Sky Memorandum, (c) the delivery of the Offered Securities to the
Underwriters, (d) the fees and disbursements of the Issuers’ counsel and
accountants, (e) the qualification of the Offered Securities under the
applicable state securities or Blue Sky laws in accordance with Section 5,
including filing fees and reasonable fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with any Blue Sky survey
and any legal investment survey, (f) all fees payable to the Financial Industry
Regulatory Authority in connection with the review, if any, of the offering of
the Securities, (g) any fees charged by rating agencies for rating the Offered
Securities and (h) the fees and expenses of the Trustee, including the fees and
disbursements of counsel for the Trustee, in connection with each indenture
under which the Offered Securities are to be issued and the Offered
Securities. Except as specifically provided elsewhere herein, the
Underwriters will pay all of their own costs and expenses, including without
limitation the fees and expenses of their counsel and the expenses of selling
presentations.
16
If this
Agreement shall be terminated by the Underwriters because of any failure or
refusal on the part of the Issuers to comply with the terms or to fulfill any of
the conditions of this Agreement, or if for any reason the Issuers shall be
unable to perform their obligations under this Agreement, the Company will
reimburse the Underwriters for all out-of-pocket expenses (including the fees
and disbursements of their counsel) reasonably incurred by the Underwriters in
connection with this Agreement or the offering contemplated
hereunder. This provision shall survive the termination or
cancellation of this Agreement.
9. Defaulting
Underwriters. If on the Closing Date any one or more of the
Underwriters shall fail or refuse to purchase Offered Securities that it has or
they have agreed to purchase on such date, and the aggregate amount of Offered
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the aggregate amount of the
Offered Securities to be purchased on such date, the other Underwriters shall be
obligated severally and not jointly in the proportions that the amount of
Offered Securities set forth opposite their respective names bears to the
aggregate amount of Offered Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the Managers may
specify, to purchase the Offered Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the amount of Offered Securities that any Underwriter has
agreed to purchase pursuant to this Agreement be increased pursuant to this
Section 9 by an amount in excess of one-ninth of such amount of Offered
Securities without the written consent of such Underwriter. If on the
Closing Date any Underwriter or Underwriters shall fail or refuse to purchase
Offered Securities and the aggregate amount of Offered Securities with respect
to which such default occurs is more than one-tenth of the aggregate amount of
Offered Securities to be purchased on such date, and arrangements satisfactory
to the Managers and the Issuers for the purchase of such Offered Securities are
not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter or the
Issuers. In any such case either the Managers or the Issuers shall
have the right to postpone the Closing Date but in no event for longer than
seven days, in order that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
10. Counterparts. This
Agreement may be signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and hereto were upon
the same instrument.
11. Applicable
Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
12. Headings. The
headings of the sections of this Agreement have been inserted for convenience of
reference only and shall not be deemed a part of this Agreement.
17
